Saturday, February 2

The Ropes & Gray Report on Nassar is Nonsense, Harmful

The Ropes & Gray report on the Nassar scandal is a public relations document for the sole purpose of "corporate cleansing." Its findings and conclusions are nonsense and repeat the same mistakes of the Freeh Report.  It seems entirely appropriate that I publish this column on Groundhog's Day.

Ray Blehar
February 2, 2019, 5:20 PM, Updated 5:51 PM

On January 2018, nearly 160 women came forward to tell their stories of victimization at the hands of former medical doctor Larry Nassar.   

Many of the women spoke out were athletes.  Some were very famous former Olympic gymnasts.  

The sentencing caused a scandal that wasn't at all about sports (but wrongly focused on sports all along) became focused on elite women's gymnastics. 

Shortly after the sentencing concluded, the United States Olympic Committee (USOC) hired the Ropes and Gray (R&G) law firm to conduct a so-called independent investigation to determine who received reports about Nassar's and what they did with the information.  

USOC stated:

“Ropes & Gray will have full discretion to conduct the investigation and make findings in whatever way Ms. McPhee and Mr. Dowden decide is appropriate,” said Susanne Lyons, the independent director of the USOC who is leading the board’s special committee.

“Ropes & Gray will prepare a written report, which will be released in its entirety to the public. The investigation will be professional, independent and thorough, and will take as long as necessary to get to the truth.

“The United States Olympic Committee pledges its full support to Ropes & Gray and will provide access to relevant documents and witnesses. USA Gymnastics (USAG) has confirmed that it will do the same.

“Once the investigation is complete and the report has been published, we will work diligently to ensure that appropriate action is taken based on the facts that emerge.”

“We must ensure that a tragedy of this magnitude can never happen again.”

The USOC announcement wasn't met with confidence from the gymnasts/survivors from the Nassar case.   They refused to speak with R&G because of their concerns over the independence of the investigation (at 15).

Their concerns were on the mark.

According to the report (at 14), USOC's contract with R&G did not require the legal firm make any "recommendations for reform."  If R&G's charter wasn't making recommendations, then how would this report ensure "a tragedy" like Nassar never happens again?

That was one of the signs that this report was nothing more than a public relations ploy -- however, the first sign appeared on page 2.

A Complete Whiff on Nice Guy Offenders 

A passage on page 2 of the Executive Summary likely alerted many readers that a very misinformed analysis would result from the R&G investigation.  

At this point, many readers would expected the report authors, Joan McPhee and James Dowdento correctly identify Nassar as "Pillar of the Community offender" or a "Nice Guy offender."   Or perhaps an "Acquaintance offender."

But that didn't happen. In fact, those words never appear anywhere in the report.

significant amount of reporting referred to Nassar in those terms or some variation (see example below).

Apparently, the authors also ignored the excellent report on the subject by former FBI agent James Clemente in response to the Jerry Sandusky case -- only the most publicized child molestation case in the last 30 years.  The Clemente Report was not listed among the documents and/or training materials referenced to bring the investigators up to speed on the topic of child sexual abuse.

Nearly two weeks ago, I reached out to the authors about why those commonly used terms were not used in their report.  I did not receive a response.

Like the Freeh Report of 2012, the R&G report was viewing the case through the wrong lens and it reached the wrong conclusion as a result.

Recall that the Freeh Report of Penn State University (PSU) wrongly concluded that Jerry Sandusky crimes were enabled by "a culture of reverence to the football program."  The R&G report repeats the mistake by concluding that the elite gymnastics "culture prioritized performance over [athletes] welfare"

In both cases, the math doesn't support the conclusions.

Sandusky, who was convicted of 45 criminal counts, committed less than half his crimes in the football facilities.  After Sandusky was banned from using facilities in 2001, he continued to commit crimes against young men in off-campus locations.  Two of his later victims testified that none of their victimization took place in the football facilities. 

Of the approximately 265 women who came forward in the Nassar case, only 19 were elite gymnasts from the U.S. National Team.  144 local Michigan and Michigan State University (MSU) athletes have filed lawsuits and their sports include softball, running, soccer, rowing, volleyball, dancing, figure skating and swimming.  Some weren't athletes at all.  

The statistics show, overwhelmingly, that Nassar's crimes were not enabled by the "culture of elite gymnastics" or to gymnastics at all.  While the elite gymnasts may have been very disciplined and taught not to complain, their reticence to come forward against a Pillar of the Community is much the same as the children who were in the charge of community do-gooder Jerry Sandusky. The gymnasts feared that they wouldn't be believed, just as Sandusky's victims felt they wouldn't be believed.

While the R&G conclusion is absolutely wrong, I have little doubt that it served the purposes of its client. 

It reaffirmed the media's false narrative of a cover-up run by a couple bad apples.

The Public Relations Game

The following evidence exposes the R&G report as a public relations (PR) document that was used for the purpose of corporate cleansing. 

In a "corporate cleansing," a few officials are served up as sacrificial lambs and scapegoated for causing the harm to victims.  The officials are removed and the organization can put its scandal in the rear view mirror and move forward.

USAG's Steve Penny and USOC's Scott Blackmun and Alan Ashley were the sacrificial lambs.

This sentence from the report (at 101) epitomizes the corporate cleansing.

"The USOC as an organization was effectively disabled from considering and taking appropriate action in response to the athlete complaints and Nassar due to the decision by two senior officers of the USOC to keep the matter to themselves"


USOC's Safe Sport policy requires that in cases of sexual abuse investigations the names of the subject, suspected perpetrator, and individuals who made the report remain confidential. In addition, the policy repeats many times that it has no role at all in conducting sexual abuse investigations and rightfully leaves the matter to law enforcement professionals.

In addition, per policy, USOC will not get involved in any matter where there is an ongoing criminal investigation.

Blackmun's and Ashley's decision was to follow USOC policy and leave the investigation to the professionals of the Federal Bureau of Investigation (FBI).  But because readers, including media members, had no idea of that USOC officials were complying with policy by not sharing information, every was fooled into believing it was a cover-up.

Sally Jenkins of the Washington Post  fell into the trap, describing the report as "thorough and unstinting."   

This passage from Jenkins' column reveals how badly she was fooled.  

"On page after page, the report refuses to soften sentences or dull the shocking specificity of the failures. Its documentation of what can only be called a cover up by the USOC and foot-dragging by the FBI will be of intense interest to Congressional overseers. In the summer of 2015, USA Gymnastics chief Steve Penny "squarely presented" allegations of Nassar's sex abuses to the leaders of the USOC, yet they did not take a single preventative measure that would have saved other victims. Instead they pursued a strategy of "secrecy," the report declares.
The report makes clear just how culpable and cowardly these men really were. Penny's first act on hearing that his underaged gymnasts complained of being penetrated by Nassar was not to call police, but hire a private investigator to question their veracity and persuade them to keep it confidential. Only after five weeks did he contact the FBI..."

Jenkins went right along with the cover-up narrative and went a step farther to sensationalize the story by adding a fact that was not in evidence -- that Penny was told underaged gymnasts were being penetrated by Nassar.

USAToday's Christine Brennan also fell for the cover-up narrative too.  She wrote:

"Though much has been reported about Penny and USAG’s systemic failures, the report sheds new light on the USOC’s secrecy in the matter and its lack of oversight."

The R&G report's omission of evidence, specifically USOC and USAG policies, relevant child abuse reporting laws, and the emails between USAG officials, are at the heart of how the report deceived Jenkins, Brennan, and other prominent outlets of the media that there was cover-up by top officials.

Penny was following USAG policy by consulting legal counsel, by conducting an internal investigation, and by keeping the matter confidential until the point he believed the matter should be turned over to law enforcement.

According to USAG's Participant Welfare Policy:

The R&G report didn't make mention of the Participant Welfare Policy until page 176 of its 199 pages of text.   And even when it did, it provided no specifics at all on sexual abuse reporting and the investigation process. 

Those policy disclosures almost completely undermine the cover-up narrative. 

Emails in which Penny asked the FBI for a "cover story" -- that were depicted as nefarious by the media and R&G -- were nothing more than Penny trying to figure out how to deal with the situation of Nassar retiring from USAG while being under investigation for sexual misconduct, but with insufficient evidence compiled to make an arrest.

As former prosecutors McPhee and Dowden knew, or should have known, that Penny could not disclose unproven allegations against Nassar during an FBI investigation -- even if it was to warn gymnasts.

Hindsight is always 20/20.

In retrospect, Penny and USAG could have fast-tracked a disciplinary action against Nassar for his violation of its one-on-one unsupervised contact rule and then put him on its Permanently Ineligible List.  That would have provided a means to warn all gymnasts associated with USAG.

If the R&G report was an honest report, it would have offered a solution like the one above.

And it would have also said that Penny should have never had to initiate an investigation of Nassar in the first place.

Reporting Failure at the Start

The Nassar case landed in Penny and USAG's lap because Sarah Jantzi, the coach for the Twin City Twisters (Champion, Minnesota) failed to report the initial report of suspected sexual abuse to the proper authorities. 

According the R&G report (at 58), Jantzi was informed by Athlete 1 (who has come forward and is Maggie Nichols) that she went to Nassar for treatment of a knee injury and that he had massaged her too close to her groin area and had also sent her a Facebook message that she looked beautiful in her prom dress.  Nichols was 17 at the time. 

Jantzi also learned that two other gymnasts also experienced "the uncomfortable factor" during their treatments with Nassar.  Those two gymnasts were adults at the time. Nassar violated  USAG's Participant Welfare Policy in all three cases.

According to the policy, Jantzi was required to report to the proper authorities.

Under Minnesota law, youth sports coaches (i.e., Jantzi) are mandated reporters of child abuse.  In suspected sexual abuse cases, they are also required to notify the police.   Jantzi should have made both reports because Nichols was a minor/child.

Again, I reached out to the authors about the lack of inclusion of relevant statutes in the report and received no response.

Had Jantzi contacted Minnesota child protective services (CPS) and police there would have been a chance that Nassar's access to children could have been halted immediately.

One of the greatest misunderstandings in these cases is that calling the police immediately will stop a predator in his/her tracks.  Nothing could be farther from the truth because law enforcement's role is to investigate, gather evidence, and determine if a person committed a crime and can be charged.

That doesn't happen immediately, and in cases like Nassar's and Sandusky's, it can take years to successfully build a case.  During that time, the suspect has continued access to children.

Conversely, child protective services can suspend a suspected perpetrators access to children at the very moment that it receives a report of suspected child abuse and initiates an investigation.

The report blamed Penny and Blackmun for not making a report to child welfare authorities based on second-hand and third-hand reports of suspected abuse while it completely excused Jantzi, who failed to legally act when receiving a direct report of suspected child abuse. 

Imagine the blow-back by the media if the R&G report put the onus Jantzi for failing to comply with  policies and the laws and rightfully exonerated Blackmun.  USOC would have been accused of a whitewash and R&G would have been viewed as paid hacks.

That is exactly why these so-called independent investigations, where the investigators are paid millions of dollars, are a complete sham.  

The R&G report wasn't about telling the truth -- it was a public relations ploy that simply repeated the existing media false narrative that individuals covered up Nassar's crimes to protect powerful institutions.

The Freeh Report for Gymnastics

In 2015, PSU President Eric Barron criticized the Freeh Report, stating "There's no doubt in my mind that Freeh steered everything as if he were a prosecutor trying to convince a court to take the case."

The R&G report is the Freeh Report for gymnastics.   

It too reads like a grand jury indictment and uses the well-worn prosecutor tactic of omitting any evidence that undermines their allegations of misconduct against the "bad apples."  

Report authors McPhee and Dowden are former prosecutors whose biographies do not mention experience with serial sex offender cases.  The documents referenced in the report to do not include literature on the behaviors of child molesters nor is there any references to prominent experts on the subject. 

As a result, the R&G report, like the Freeh Report before it, is mostly defective due to its failure to recognize the difficulty in recognizing Nassar's behaviors as abusive/criminal,  hindsight bias, and failure to evaluate the actions of USOC and USAG officials in the context of policies and laws.  The latter could be considered intellectual (or outright) dishonesty.   

The lack of other exhibits, such as policies, relevant laws, Congressional testimony of Jantzi and her contemporaneous notes, as well as maintaining the anonymity of gymnasts whose identities were known to the public, allowed R&G to deceive the readers about who failed and who didn't. 

Interestingly enough, the report has but one evidence exhibit.

Exhibit 1 is report from a computer forensics firm that stated, without certainty, that Penny and Blackmun deleted a 2015 email that contained Nassar's last name.  The report insinuates that the deleted email was part of a cover-up; however, the deletion of the email was entirely consistent with confidentiality provisions of both the USAG and USOC.

My review of the emails that were retained shows that Nassar's last name was only used in emails between those directly involved in the investigation (i.e., Penny, Faehn, and USAG's attorneys from Faegre Bakers Daniels).  In the other cases, he was referred to simply as "Larry" or "medical staff."

As you may recall, the Freeh Report assigned a cover-up motive to PSU's emails that used the term "the subject" -- a common investigative term -- instead of Sandusky's last name.

I reached out to the authors to ask if they had used the Freeh Report as a reference document for their report and didn't get a response.

However, anyone who has read both reports will see the similarities in not only the conclusions, but the language used.  To wit:

"...these individuals and institutions ignored red flags..." (at 2)

"...the tone at the top from USOC and USAG contributed to a perception among athletes that the culture prioritized performance over their welfare..." (at 110)

"The actions of these organizations, their CEOs and senior personnel reveal that, apart from USAG's reports to law enforcement in the Summer of 2015 and again in the Spring of 2016, USAG and USOC took no meaningful steps to protect athletes from the danger posed by Nassar." (at 6) 

Finally, the report is like the Freeh Report because its conclusion results in the public remaining in the dark that every child is at risk of being victimized by another Larry Nassar or Jerry Sandusky.

Doing Harm with the "Sports Culture" Narrative

While I could go on and on with dozens of examples of flawed findings of the R&G report, the most critical failure of the report is in its conclusion (at 10 and throughout the report) that "Nassar's sexual misconduct was able to proliferate and metastasize" due to the "environment" and "culture in elite gymnastics"   

Blaming the crimes of Nassar on a culture particular to sports does not serve the public interest and ensures that adults will believe that these cases are isolated and can't happen to them.  They are led to believe that because Nassar is in prison, the threat has been nullified. 

Proof of that is quite evident 

In September 2018, local Michigan news reporters David Harns and Alexandra Ilitch hosted forums regarding how to identify sexual predators.  One was held on the MSU campus in East Lansing and the other was held in Meridian Township.  Meridian Township police investigated Nassar in 2004 and he used deception to convince police he did nothing wrong.  He did that same again in 2014 while under investigation by MSU.  Both seminars featured Nassar survivors and experts in the field of child sexual victimization and prevention.  

About 40 attended the MSU seminar -- just one was an employee of the University.

Around two dozen attended the seminar in Meridian Township. 

Attendance information was revised after initial publication. 

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